Re EM [2022] EWCOP 31

Participation - anonymity - transparency order This judgment considered participation by the protected person, anonymity, and the correctness of the standard transparency order. (1) The fundamental rule is that, where an application is made which seeks the deprivation of the protected person's liberty, he must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for him, with the only exception being where an interim order is very urgently needed and there is just not enough time to secure his representation before the hearing (but at the hearing his representation at future hearings must be enabled). An unjustified failure by the court to secure such representation when making a non-urgent deprivation of liberty order will very likely render the order unlawful. (2) The anonymisation of orders (as opposed to published judgments) should cease. (3) The transparency order in this case may have been technically unsound for two separate reasons (which are both condoned by r4 COPR and PD4C): (a) it was made in the absence of a Re S-type balancing exercise, weighing the Article 8 ECHR rights of EM with the Article 10 ECHR rights of the public at large, exercised via the press; and (b) notice of the intention to seek the order had not been given to the press pursuant to s12(2) HRA 1998.


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This case has been summarised on page 15 of 39 Essex Chambers, 'Mental Capacity Report' (issue 125, September 2022).

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The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

The WLR Daily case summaries

[2022] WLR(D) 397B

Court of Protection

In re EM

[2022] EWCOP 31B

2022 July 7; 29

Mostyn J

Mental capacity— Incapable person— Best interests— Determinations on capacity and best interests of vulnerable adult made where that person not represented and his participation in urgent proceedings limited— Whether second interim order to be made where vulnerable adult remaining without representation— Observations and guidance on minimum level of participation to be afforded to vulnerable adult in such proceedings— Whether reporting restrictions to be imposed— Mental Capacity Act 2005 (c 9), s 4 — Court of Protection Rules 2017 (SI 2017/1035), rr 1.2, 17, PD1A

Pursuant to the Mental Capacity Act 2005 the local integrated care board successfully applied at an out of hours hearing for, inter alia, an urgent interim declaration that a vulnerable adult lacked capacity to make decisions concerning his medical treatment or residence together with an order that it was in his best interests for him to be taken from his home to a hospital setting in circumstances where he was refusing treatment and there were concerns over the safety of his environment. The matter was returned to the Court of Protection one week later for a further urgent order declaring that it was now in his best interests to be discharged from hospital and moved to a suitable nursing home. At neither hearing was the vulnerable adult represented. While his wishes and feelings were conveyed in limited form to the court by way of reports from the professionals involved in his care, it could not be said that he had meaningfully “participated” in the intrusive proceedings or that his interests and position had been “properly secured” pursuant to rule 1.2(2) of the Court of Protection Rules.

On the care board’s application—

Held, interim order granted. Despite the continued absence of representation for the vulnerable adult the particular circumstances of the present “very urgent” case were enough to satisfy the court that it was appropriate to make a further order, on an interim basis, in the terms sought provided that directions were also made to secure the participation of the vulnerable adult moving forward (para 29).

Health Service Executive of Ireland v CNWL [2015] EWCOP 48M applied.

Observations and guidance on the minimum degree of participation to be afforded to vulnerable adult on an application to the Court of Protection to authorise deprivation of liberty (paras 6–22, 30, 31, 32)

Observations on the common but unhelpful practice of anonymising vulnerable adults in orders regulating their welfare made by the Court of Protection (paras 34–35, 38, 39).

Per curiam. The transparency order made, in broadly standard terms, in the present case in accordance with the standard practice condoned by COPR r 4 and paragraph 2 of PD 4C may be technically unsound where it constitutes a form of reporting restrictions order and where (a) it is made in the absence of the balancing exercise between articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms required by the established authorities and (b) no notice of the intention to seek the order was provided to members of the press pursuant to section 12 of the Human Rights Act 1998. The court respectfully suggests that the correctness of the standard practice be reviewed by the rules committee with input from all relevant stakeholders (paras 41–42, 43).

In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593B, HL(E) applied. David Lawson (instructed by Mills & Reeve LLP) for the local care board and NHS foundation trust.

Thomas Barnes, Solicitor

Referenced Legislation

Mental Capacity Act 2005 (c 9), s 4

Court of Protection Rules 2017 (SI 2017/1035), rr 1.2, 17, PD1A


Full judgment: BAILII


Date: 29/7/22🔍

Court: Court of Protection🔍



  • EM🔍
  • NHS Coventry and Warwickshire Integrated Care Board🔍
  • Coventry and Warwickshire Partnership NHS Trust🔍

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Published: 27/10/22 20:44

Cached: 2024-02-27 22:52:24